NCJ Number
144721
Journal
Criminal Law Forum Volume: 4 Issue: 1 Dated: (1993) Pages: 95-117
Date Published
1993
Length
23 pages
Annotation
This article examines the current state of international norms regarding the execution of insane and mentally retarded inmates.
Abstract
In the case of capital crimes, the issue of insanity often arises after sentencing, since it is not unusual for individuals who have met standards of mental competency throughout the criminal process to become insane after being condemned to death. In the case of the death penalty, the ability to appreciate the nature and consequences of the punishment would appear to be the test of insanity. In the writings of the English jurist Blackstone, insane persons cannot exercise their legal rights prior to the execution date and should therefore be excluded from execution; Blackstone also argues that the execution of the insane and mentally retarded would be cruel and inhumane. Customary norms of international law are created when two elements are present: state practice consistent with the norm and opinio juris, that is, the acceptance of the norm by the states concerned. By these norms, prohibition of the execution of the insane is a customary norm of international human rights law. Nevertheless, in retentionist countries where the death penalty is widely practiced, such as the United States, courts will likely provide a narrow interpretation of this exception. 106 footnotes